Absolutely No One Is Happy With the Dobbs Leak Investigation

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Speaker 2: What’s the way forward for a court that’s troubled? Has the secrecy grown so great that it is protecting things that shouldn’t be protected?

Dahlia Lithwick: Hi, and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court. And I am Dahlia Lithwick. This past few weeks have been deeply, deeply strange, even by the court’s own standard for whatever is the new normal. We finally heard about the Court’s investigation into last May’s Dobbs leak. Then we heard a supplemental statement about the justices participation in that leak investigation. And then we heard by way of some stellar reporting from The New York Times, Jodi Kantor, about how that leak was roiling the building from the inside and from all around. Nothing about any of this is good for the court. But maybe more importantly, it raises some questions about what it means for all the rest of us.

Dahlia Lithwick: Later on in this show, Slate’s very own Mark Joseph Stern is going to join us for our special Slate Plus segment, where we kick around the news we couldn’t fit into the main show this week. That’ll include the announcement of the first opinion of the term and its baffling unanimity involving benefits for disabled veterans. Plus, whether a new documentary about Brett Kavanaugh is indeed anything new.

Dahlia Lithwick: But first, the leak, the leakers, the leak investigation and the investigation of the leak investigation. When the full draft of the Dobbs opinion was published in Politico last May, it caused, I think it’s fair to say, a shockwave experienced around the country, if not in fact, the world. Nothing of this sort ever happens. Nothing of this sort has ever happened at the Supreme Court. And while the various justices described it as an act of unspeakable betrayal and violence within the court, the Chief Justice, John Roberts, was tasking the marshal of the court, Gale Curley, to investigate. In a May 2022 speech, Justice Clarence Thomas described how the leak had changed the atmosphere at the court.

Jodi Kantor: When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity. We never had that before. We actually trusted it was we may have been dysfunctional family, but we were a.

Dahlia Lithwick: Over the summer, we heard rumors that law clerks had had their phones seized, that they had hired lawyers in some cases in the fall. Justice Neil Gorsuch said that a report was imminent. Still nothing then more nothing until late last week we heard that a 20 page report had dropped, concluding in many, many words that the identity of the leaker was unknown and probably unknowable. The investigative team had interviewed 97 employees, all of whom just denied disclosing the opinion. The investigation, quote, has to date been unable to identify a person responsible by a preponderance of the evidence and quote. Over and above that. Former Homeland Security Chief Michael Chertoff, who had sat with Justice Alito on the third Circuit Court of Appeals, signed off on a note to add that the probe was a thorough one and that, quote, he cannot identify any additional useful investigative measures.

Dahlia Lithwick: Look, the blowback was pretty swift. The report had noted that, quote, The investigation focused on court personnel, law clerks and permanent employees. It implied that the justices and their spouses simply were not questioned. And if all this were not the single most mortifying screw up in the history of detective work, the very next day, Supreme Court Marshal Gail Curley issued the saddest piece ever, indicating that as part of the probe, she had in fact interviewed the justices and, quote, nothing implicated the justices or their spouses, no sworn affidavits, no threats of criminal penalties. It was per Marshall Kerley, an iterative process, end quote, in which I would only imagine the justices and the marshal took turns asking one another questions like, Would you like one lump of sugar or two? Or could you kindly pass the macaroons?

Dahlia Lithwick: But into this morass stepped my old dear friend Jodi Kantor, who is of course, the Pulitzer Prize winning investigative reporter, co-author of she said a book that recounts how she and Megan Twohey broke the story of sexual abuse allegations against Harvey Weinstein. Helping ignite the MeToo movement, she said, has also just been turned into a fantastic movie.

Dahlia Lithwick: But in recent months, Jodi has been turning her investigative lens onto the Supreme Court, reporting the blockbuster news this fall of a possible leak in the Hobby Lobby deliberations that may have come from Justice Alito or his wife to a wealthy donor to the Supreme Court Historical Society. It was at the time a rich scoop piece about access to the court and what happens in the court, as was her piece this past weekend, about the Dobbs leak. Now, I have known Jodi to be Shaw since we were both toddler reporters. And it is just a pleasure to welcome you back to your Slate family of origin and to just say, Jodi, you are a national treasure. And it is a joy and also somewhat fearsome to have you moving over to cover my beat.

Speaker 2: Well, thank you very much. It is incredible to be back at Slate with you.

Dahlia Lithwick: I think the best place to start and this is going to seem obvious to you, but maybe not obvious to our listeners, is that the Supreme Court and its employees and certainly the law clerks simply do not speak to journalists like ever. They are warned against it after the brethren, clerks and employees were truly think instilled with the fear of God. And I have to say, in my 23 year career, I don’t get anyone to talk to me ever, including former friends who in the year that they’re clerking, just like put on a fake nose and mustache and hat and pretend they don’t know me. So so part of me just wants to start with this prefatory question of did you have any sense that this building that is usually and for decades has been locked down like a drum was ready to blow? Did you take it for granted that folks would talk to you?

Speaker 2: No, of course not. I think you have to go in with a lot of respect, not only for the court, but for, you know, why people maintain its secrets. And I think this was, you know, obviously, I can’t say a lot about this, but I think that people were speaking because they cared, actually. You know, there were all sorts of reasons why people talk. And sometimes I acknowledge that it can be destructive sometimes and it can feel destructive to the organization. But the people who helped me with this last story, they care. They cared and they care.

Dahlia Lithwick: And it’s interesting because you noted, too, that the paradox is what they care about isn’t just, you know, me criminal exposure. They care actually about the institution of the court. In other words, they are having, it seems to me, some feeling on the inside that there is a reputational loss here that they are trying to correct for, too. In other words, it seems to be coming from a place of not like I’m mad, but I’m worried about this institution that I love and all of the sort of norms and expectations around how we conduct ourselves. Yeah.

Speaker 2: I think that’s right. And I think that also you have to be sympathetic to the real riddle that the court is facing. What a lot of these stories add up to is the question of can this court police itself, how can it manage to maintain its independence, which is genuinely so important? There’s a real case for that. And yet self-managing is we’ve seen some real problems come from that lately. And there are you know, there are some. Urgent questions about accountability floating in the air.

Speaker 2: I think it’s really important to go in with the knowledge that this is structural as much as the personalities are super interesting. These dilemmas are baked into what the court is because it really is nine individually confirmed people who don’t have a traditional boss. People see Roberts as, you know, sort of the boss, but he’s more of an administrator of the court than an executive.

Dahlia Lithwick: I’m guessing that most of the folks who are listening now have read the piece, but would you mind just kind of giving us the high points of what your takeaway after talking really pretty extensively to people inside the building who, as I say, are not generally inclined to talk to the press? And you also talked to, I know folks who litigate in front of the court. Can you just give us the sort of three big takeaways that you got from your reporting in this piece?

Speaker 2: I think the biggest takeaway is that this investigation was obviously some sort of attempt to write the institution after this leak. Like this breach was a shock, as you said at the top of our conversation to people and the investigation was the answer. I mean, the chief justice announced it like the next day and. These investigations can be tricky, right? They can restore some confidence even if they don’t find the answer. They can like process builds faith, right? They can restore a sense of normalcy and rightness and introduce new policies and whatnot, or they can further lower faith.

Speaker 2: And my impression and and let’s also stipulate that I don’t have a God’s eye view. And of course, I did not speak to, you know, everybody involved, but there was a loss of faith that came out because of the way this investigation played out. So the big one is that the justices were not even held close to the same standard of interrogation as everybody else.

Speaker 2: The marshals statement is actually pretty hard to understand. She says that she had iterative conversations with the justices. Listen. We don’t know what that means, but when you contrast it with the way others were treated, the gap is unmistakable. I mean, this was an investigation that scared people. They were sat down in a room. They were told that they could face criminal liability for misstatements. They were presented with affidavits. There was a lot of implicit pressure to sign, as the report says, they had to confess even to small things like, wow, I did tell my partner, you know, something about this.

Speaker 2: And what I also made sure to say in the story is that while this was going on, people inside the court knew that the justices were not being treated the same way. It was pretty obvious to them. And so the questions that we are all contemplating now, people inside the court have contemplated for longer.

Dahlia Lithwick: It’s funny, I made a very flip joke on one of the TV shows this week where there was such big Downton Abbey energy around this, where you just had the sense that downstairs people were being, you know, interrogated and threatened and lived in fear of, as you say, not just having to disclose things that materially had to do with the leak, but anything. They felt that everything about them was being exposed to the investigators and that upstairs, you know, quite literally, there was just conversations, iterative ones, to be sure, but conversations over tea. And it does raise this question that you really, I think, flag in the piece where these very lopsided relationships exist.

Dahlia Lithwick: Right. I mean, you note at the beginning, you know, the justices have someone help them put their robe on. And you talk about and this is so relevant to some of the work we did on MeToo for law clerks. But this sense that you go along as a clerk or face just huge professional consequences if you displease your judge. The lopsided incentives are so acute. Put aside the massive signing bonuses for clerks, which is insane. But you’re nobody is going to risk these contacts, this lifetime of opportunities. And so there’s this need to please your judge that is all out of proportion, I think, to a normal employee employer relationship.

Dahlia Lithwick: And I wondered, because you’ve done so much reporting about closed systems, I mean, this is the nature of your meta pathbreaking work, But talk a little bit about the nature in your view of this sort of deeply respectful hagiographic in your in your piece you talk about the family relationship in the court, which is a phrase that always makes me crazy because families are rife with abuse and lying and cover up. Being in a family relationship at work never redounds to the benefit of the children, it seems to me. So I just wondered if you could map some of that weird, weird asymmetry in sort of power and respect in consequences onto other work you’ve done in investigating these pretty closed, secretive loops with funny incentives?

Speaker 2: Wow. That is I mean, we could unpack that for a long time. I mean, I think, first of all, you already said the most important thing about the clerk relationship, which is that it’s a heightened version of the usual power dynamic that exists between bosses and employees, because that one year you spend as a clerk can become the foundation for the rest of your professional life. And, you know, maybe you have an opportunity to become a federal judge years later, or maybe what you really want is a law professor perch. Or maybe you want to argue cases in front of the Supreme Court in which you’re sort of like intimacy with the court is a huge asset. There are these reunions that clerks go to that are a really big deal. I mean, not only is there a lot of fondness and affection, but it’s an incredible professional networking opportunity to be a kind of member of this club. So I think you’re right that the levers are particularly powerful.

Speaker 2: And then the other thing I thought about. A lot. And listen, I think about it all the time as a reporter is what’s an appropriate amount of secrecy. You know, that’s one of the great questions of the world with me, too. You know, sometimes what Meghan and I would talk about with people is that there’s a difference between privacy and secrecy. A lot of things deserve privacy. People’s intimate stories of trauma deserve privacy. The internal workings of a business or of a court, they can deserve privacy. I mean, the sort of argument of protest against the leak from the justices was this was an assault on our deliberative process. It’s necessary for us to come into a room alone together to figure this stuff out. And this was from whatever side an attempt to interfere.

Speaker 2: But then, you know, the question is how much secrecy is too much? And I can’t tell you the exact answer with the court. But what we experienced with the MeToo reporting is that there was way too much secrecy. I mean, women like with a straight face, everybody thought it was normal that women would sign these settlements, saying that they would never speak to another human being about what happened. We saw papers in which people agreed not to tell their shrink, you know, without permission, not to tell an accountant without permission. There were women who received really large sums of money, like huge amounts of money.

Speaker 2: And the settlements, I think they became a legal fiction because it was like, Oh, you just got $20 million and you are not going to tell your sister how you got that money. And it didn’t make any sense and it wasn’t healthy because the main point about the settlements is that it was enabling people to rack up repeat allegations. You know, somebody could essentially dispose of one incident and go on to allegedly hurt somebody else 5 minutes later. So I think the question that everybody involved, you know, readers, reporters like me and you people at the court have to answer is like, what is the appropriate and healthy amount of privacy and secrecy for this organization?

Dahlia Lithwick: So maybe this is connected to that, Jody, but one very arresting kind of side note in your piece, but it really struck me was that some of the employees and the clerks are actually kind of pissed off about this double standard at the court that has to do with being politically active. So not only are they, you know, downstairs with the bright light shining in their face, being told to sign affidavits and threatened with, you know, criminal sanctions as their bosses are upstairs seemingly, you know, swanning around having iterative conversations.

Dahlia Lithwick: But you note further that the staff had the sense or the employees and staff that you talked to that they were being sort of roughed up over threats to the institution and their bosses were not super interested in the example that you brought that I hadn’t really heard anyone say out loud was, you know, employees receive, as you wrote a stern memo reminding them they may not participate in partisan political activities, no events, no fundraising, bumper stickers, statements on social media.

Dahlia Lithwick: And so some bristled, You write, when four justices attended the 40th anniversary dinner for the Federalist Society, an influential conservative group that focuses on the judiciary in November. And it really made me think Jodi of the fact that when I clerked, I wasn’t allowed to go to marches. I couldn’t have bumper stickers or lawn signs or do anything to events. And I was clerking on the ninth Circuit, but the rules were the same, that I had a political life that year. And that the disjunction between how the employees that you talk to and the clerks that you talk to are experiencing that ban on what looks like partisanship and what the bosses are doing is crazy making.

Dahlia Lithwick: And I just wonder if that’s a new thing. I mean, I confess it never occurred to me to do anything else, but I think my judge never did anything but adhere to those strictures. And so I wonder if it’s always been the case that the employees in the building just have to, you know, rise to this very high standard of nonpartisan behavior. And the justices go ahead and speak where they want and say what they want or if this is something that folks are newly aware of in the building, that this this rule of nonpartisanship for the but not for me is just fundamentally unfair.

Speaker 2: Just to be clear, I don’t know that what you said is true about employees being roughed up over this memo. I think it’s more the case that this memo went around very routinely. Right. And it’s not surprising. You know, the Supreme Court is not supposed to be partisan. No lawn signs, no social media activity around, you know, elections. Please. Like, here’s a reminder to everybody. But some people felt that there was a double standard because they would see, for example, justices going to a big Federalist Society gathering and speaking. And their question was, do the justices have to play by the same rules as everybody else? And that’s the question that keeps coming up with the Supreme Court. Right. They are not bound by the same ethics rules as lower federal judges.

Speaker 2: And so you know why, right? I mean, that question has been asked like a million times in a million ways. A lot of people were troubled, not just that Ginni Thomas was involved in efforts to overturn the 2020 election, but then that her husband, Justice Thomas, didn’t recuse himself from those cases. And people ask, like, where do you take that? Can anybody enforce that? Is there another forum beyond this?

Speaker 2: You know, it’s funny, I was still thinking of your last question about secrecy as we were talking about this one. And, you know, they’re both about the same thing, which is like, what’s the way forward for a court that’s troubled, Right? Like, has the secrecy grown so great that it is protecting things that shouldn’t be protected? Right. Like, is it gone beyond an appropriate level of secrecy to a point where there is not a healthy discussion and things are not, you know, getting addressed? And then this question, you know, is a little bit the same. I mean, public confidence in the court has really, really plummeted. And so there’s the question of how do you restore that? How do you rebuild that?

Dahlia Lithwick: I want to ask you about the question of judicial spouses, only because it’s clear from the report, the initial report, that some folks seemed, as you noted in the investigation, to have talked to partners and spouses. It felt fairly clear from Marshall Curley’s report initially that spouses were certainly not question. I think when the supplemental memo came out saying we talked to the justices, that seemed even more clear that spouses had not been questioned.

Dahlia Lithwick: Is that something that rankled inside the building? Was there a sense that a more thorough investigation would have included the spouses of the justices and the kids of the justices and other interested parties, or is there an acceptance of that ethos that we get so often from the Thomases that spouses are untouchable, that they are, you know, in their own lane and whatever it is that they’re doing does not inflect on the business of the court?

Speaker 2: Yes, people mentioned it, but I have to see that, you know, from some long reporting experience, spouses are really interesting and they’re tricky. And it’s kind of a classic Washington question of like I mean, I once in a former reporting life, I wrote a book about about the Obamas when they were president and first lady. And the first lady’s role is really ambiguous. You know, it’s an unpaid position. She is part of the White House, not part of the White House. Where it came up most in the investigation is that there was a lot of ambiguity.

Speaker 2: So basically, people were asked whether they had told anybody, you know, anything about the Dobbs decision. And as the report indicated, some people had told their partners. And I think there was real confusion, you know, around whether that was okay or not. Because there’s an assumption that the justices that the justices who have partners, you know, speak to them. But who knows, Right? None of us can really say that for sure. And there are different rules at different federal government agencies. But when you are holding sensitive information.

Speaker 2: Even in a different field, say when you’re a therapist. You know, I think there’s always a real question of is it better or worse to tell your spouse worse, because obviously it can be compromising in the worst situations or potentially better because everybody needs a lock box and everybody needs a release valve. And if your spouse is your I mean, part of the role of a spouse in life is to be the one safe space where you can go. And so it turns out there was tremendous confusion over that.

Dahlia Lithwick: And I think one thing that was clear to me from the initial report is that they chased down some of the early Twitter investigative citizen journalism around the leaker. You know, the what I think in some case amounted to actual, you know, doxing and harassment of clerks because of who they worked for and allegations of what they studied in college or who they knew. And it seems as though the investigators found, quote, nothing to substantiate the accusation that it was done by a clerk for some political motive. But it does raise the question for me, Jodi, I wonder if it raises it for you, then what is the motive like, if you’ve put that aside, that some clerk was trying to force this issue into the public to change the result in Dobbs? What does that leave as the motive, if anything?

Speaker 2: I don’t know the motive for sure. I don’t want to speculate. I don’t have a firm answer for you. The universe of possibilities of how this got out is so large. You can read it in the report. So many people got the draft right. And then there were email copies. There were paper copies. And also, you know, one of the things I learned in the course of reporting that I was very surprised by is that information security standards were very lax at the court. I hadn’t heard the term burn bag. It’s a very Washington term. It’s a bag where you keep sensitive documents that are on their way to being destroyed, but you don’t like when you leave stuff on top of the shredder and you don’t shredded. And so it actually makes it less secure. That’s sort of the equivalent of what was happening. The burn bags were sitting around for too long.

Speaker 2: And so, listen, it’s conceivable, conceivable that somebody could have grabbed, you know, a burn bag without particular motive, you know, found this leak, thus, etc.. And, you know, one thing to add is that p upset with the investigation and the feelings of unfairness. I heard them. I think it’s important to say that I heard them from both sides. I heard them coming from liberal and conservative corners.

Dahlia Lithwick: Yes. I absolutely think that the takeaway of both the investigation and the supplemental investigation in your piece is that there are zero people who are happy with how this went. This is a rare moment of bipartisan unanimity that this just was not handled well.

Dahlia Lithwick: But it leads me, Jody, to the question you’ve been flicking at through this conversation, which is the chief justice. And, you know, as you said, these are nine separate law firms, right? He does not have power. He can’t go into people’s chambers and boss them around for writer for wrong. I do think it’s fascinating that it’s clear, I think from the report that he controlled every aspect of this investigation up to and including, you know, who to to direct to do it. And I do wonder if this question of what the chief could have done different is weighing on you as much as it’s weighing on me, because I think in some sense it’s just not the case.

Dahlia Lithwick: And I think Steve Vladeck has written this week there’s a separation of powers question. If he had, you know, contracted it out to the FBI, there’s a real question of given the limits of how much control he actually has as the administrator, what he could have done different. And there’s a real question for me, because you are you and an investigative reporter. I just have to ask Jody, if you were the chief justice, how would this investigation have gone differently? And within I’m saying, like if you had Jodi Kantor, like micromanaging this, what would he have done different?

Dahlia Lithwick: And then under that is this deeper question of would he have even wanted to? Because my sense of his temperament is and I guess this is part B of my question, he really just seems to be taking the position that if he keeps saying the justices are perfect and magic and flawless and have to police themselves, at some point the public is going to come around. That seems to be the frame for this investigation.

Speaker 2: So to your question of what I would do if I were investigating, if I were in charge of the court’s investigation, I feel like I can’t really answer that. It’s not fair. I mean, I can’t tell the court what to do. And we’re on a different pursuit, an inquiry, which is journalistic. It’s about learning more deeply about this court. It’s about giving people the confidence to tell the truth, whether it’s on the record or very secretly. Listen, if anybody has any information to share, you can reach us at NY Times dot com slash tips. You can put my name on the tip and it will get to me.

Speaker 2: And if we talk, of course, the first discussion is about ground rules. The question hovering over all of these conversations is what would happen if we knew more about the court. And I understand there’s some cynicism about that. I’ve talked to many people who feel like the court’s problems just can’t be taxed. But I don’t share that because you can’t solve a problem you can’t fully see. And we don’t know what it’s like to look at this court in the sunlight.

Dahlia Lithwick: My last question for you, Jody connects up to the earlier piece, the Hobby Lobby piece, and the alleged Justice Alito leak. I think I assume justices tell their spouses about the outcome in drafts of cases. So I wasn’t so much shocked that there was like an allegation that Justice Alito or his wife had leaked the result of Hobby Lobby. But I was really shocked that you were reporting on this elaborate pay to play operation with a headquarters across the street from the Supreme. Court. Nobody knew about it, or maybe everybody knew about it. But because we refused to cover the court as a political branch, the idea of this unregulated lobby operation across from the court never occurred to anyone.

Dahlia Lithwick: And I just wonder if maybe this goes back to your sort of secrecy question. There’s so much both privacy and secrecy around, as you said, the sort of structural norms, the ethical norms of the court, because we keep telling the story of the court as this different thing. We tell the story of the court as the closest thing to a monarchy, I guess we have in this country that has its own rules and systems and its own mythology and its own ideas about boundaries and privacy and maybe the unifying theme in both these pieces. Again, you’ll tell me that I’m overstating it, but the unifying theme in both of these pieces has to be that we start covering the court as just a purely political institution, because the stuff that is getting swept away that you’re covering is purely political in some sense.

Speaker 2: You know, Dahlia, I really know what you say about your reaction to the Hobby Lobby story. You’re not the only person to react that way. And I think part of it is because of the degree of email evidence we had on Reverend Robb, Shanks attempts to plant donors inside the court, influence conservative justices, etc..

Speaker 2: You’re sitting there reading that story and reading language about the lunches with, you know, Supreme Court justices. And we we were able to quote from like a training briefing that they used, you know, saying to these wealthy anti-abortion donors, here’s how you speak to the justices. Here’s the code language you know, that you’re supposed to use. And so reading those emails for the first time, you know, seeing that in black and white newsprint, it is really contrary to our image of what the Supreme Court is supposed to be. But also, by the way, I should say that it’s unclear the extent to which the justices knew what was going on.

Dahlia Lithwick: Jodi Kantor, not only is the Pulitzer Prize winning investigative reporter responsible for half of she said the book about how she and Megan Twohey broke the story of sexual abuse allegations against Harvey Weinstein, which has now been made into a movie. But she has really, really, I think, been helping to invent this beat, which is covering the court from a different lens for those of us who are inside the court who can’t always imagine the scope of what she’s doing, it’s really immense. So, Jodie, as you said, it is just such a treat always to get to talk to you, but to get to talk to you about something that is really gnawing away on me, on my beat about how we think about the court differently. I just thank you so, so much for your time.

Speaker 2: Well, thank you, Dahlia. It’s great to be with you. You know.

Dahlia Lithwick: We are back with our Slate Plus listeners to hear our extra special wonderful Behind the Curtain bonus content with Mark Joseph Stern, who covers the courts and the law for Slate and Mark. It was an exciting week, not just because of the madness of the leak investigation and the investigation of the investigation, which we talked about in the main show and the release at Sundance of a movie about Christine Blasey Ford and Brett Kavanaugh.

Dahlia Lithwick: A film that neither you nor I have seen but feels like it’s another tip line. So let’s see who’s answering the call. But, Mark, we finally got an opinion. We finally got an opinion? Yes. Why has it taken the United States Supreme Court, which usually starts releasing decisions in early winter until January, late January, to finally hand down an opinion.

Mark Joseph Stern: Well, ain’t that the question on everybody’s minds for for so many years, the court had a tradition of issuing its first decisions in December in advance of the Christmas break. And for a long time, Justice Ginsburg was the first to drop an opinion. She was always proud of how quickly she wrote. But even after she died, the court was still dropping opinions, you know, in a timely manner. Until now, this year, when it has taken the court until the second half of January to drop a single full signed opinion. And the first opinion that dropped was, in my view, bad. It is not an opinion that got a lot of attention outside of my own Twitter feed. It is not an opinion that makes a huge difference to a lot of people, but it does make a really big difference to a relatively small number of people, and that difference is fairly shattering.

Mark Joseph Stern: And so, you know, it’s like kind of a complicated case. It’s really a civil procedure case in a lot of ways. But it involves disabled veterans who in the past the court has been very solicitous toward. And yet none of that solicitude shines through in this decision. It is a unanimous decision against disabled veterans who were injured during their service, who did not file a claim for disability compensation specifically because their injury prevented them from doing so.

Mark Joseph Stern: In this case, the poor guy, he served in the 1970s and eighties and he was a victim of this horrible collision on a ship and witnessed his friends getting crushed to death and became severely psychologically disabled. His brother is his caregiver and makes all legal decisions for him, and his brother just didn’t know. Look, you’ve got to file this claim for for disability. And so the brother waited for 30 years until he found out and filed a claim and said, hey, you know, my brother should have been getting these disability payments for the past 30 years. You should back pay him because he deserves it. Because, like, that’s how we treat our service members in this country. And the Veterans Affairs Department said no.

Mark Joseph Stern: And the Supreme Court affirmed that decision unanimously and read the law in a way that I think is just incredibly cramped and kind of stingy and said, well, the law says you have to file within a year of discharge if you want these these back payments. And this guy waited 30 years so he doesn’t get these back payments. And all of the other service members who were injured but didn’t file promptly, they don’t get back payments.

Mark Joseph Stern: And even and this is the part that really gets me they were actively involved in this case. The Edgewood veterans who were service members subjected to horrific torture at the hands of the Army, which was doing this chemical testing and seeing how members of the Army and the military responded to these horrific and brutal and very harmful chemicals. You know, those veterans were told, you can’t say anything about this, this testing that you underwent or we will prosecute you. We will send you to prison if you reveal what we did to you here. So they couldn’t file claims for disability compensation because they would have been prosecuted if they had.

Mark Joseph Stern: Until finally, fairly recently, the government changed its position and said, okay, you can talk about it. And then they came forward and said, Can we please have our disability compensation? For all those years we were gagged. And now the Supreme Court says no to them, too. And I just think, like, if that’s exactly what the law required, it would be one thing. But this is a really cramped reading of the law. This is a reading of the law that ignores what the justices have said for many years, which is, first, we should interpret ambiguities in favor of veterans. And second, that we assume Congress wanted to suspend. These deadlines if there was some equitable reason to do so, if there was something that prevented the victims from coming forward and filing a claim, both of those should have applied here, but instead the court just ignored them.

Mark Joseph Stern: Justice Amy Coney Barrett wrote this very short, kind of emotionless, robotic and rigid decision, and nobody even dissented. All the other justices signed on, including the liberals. And that really bummed me out because I think our veterans deserve more. And I don’t think that that’s actually what the law required. And it feels like this new turn at the Supreme Court where even disabled veterans who were subject to horrific injustices, even they can’t really get a fair shake because the court acts like it’s just an input output robot. And it says, well, this is what the law says. It is incredibly harsh and cruel and we will enforce it in the cruelest way possible.

Dahlia Lithwick: I guess I’m going to ask you to unpack, if you would, beyond sort of the four corners of what you wrote in your piece, why it is that you think the liberals jumped on here? I mean, this seems like it’s the kind of thing that is ripe for a Sonia Sotomayor or Katju Browne Jackson to jump in and say, as they often do, like look at the vulnerable people who are being hurt here.

Mark Joseph Stern: Right. Or even a concurrence highlighting that Congress needs to fix this problem. You would assume that at least one justice would step forward and do that, but none of them did. And, you know, obviously, this is pure speculation. But I followed this case very closely. I listened to oral arguments. The liberal justices were not on board with what Barrett wrote in this opinion during oral arguments. You know, Justice Sotomayor brought up the Edgewood Veterans. Justice Kagan pushed back really, really hard against what the Justice Department in this case was saying. And yet they signed on wordlessly.

Mark Joseph Stern: I guess my suspicion is, unfortunately, that this is an incredibly fraught term that the justices are battling behind the scenes, like endlessly. I mean, why else would it have taken so long for just one opinion to drop? Clearly, a lot of people are writing a lot of stuff and it’s sucking up all of their time. And I think it might just be that the liberal justices didn’t have the energy or the bandwidth to step out and actually say this is a bad decision or this is an incredibly cruel result, and maybe they just didn’t want to spend their time on it because they had more important dissents to write. Maybe they were trying to kind of curry favor with Barrett and make it seem like they’re team players, which we know does happen sometimes.

Mark Joseph Stern: But it still feels at bottom inexplicable to me because the reasoning that Barrett used here, this idea of Congress definitely meant to be stingy. It just to me, it does not align with the mountain of precedent here that says the exact opposite. And so I fear that maybe the liberals have given up in smaller cases like this. Maybe they’re so busy in these, you know, these cases that are involving affirmative action and race in elections. They don’t want to they want to waste their time. Whatever it is, it felt like a huge missed opportunity.

Dahlia Lithwick: So speaking of not giving up. Tell us a little bit about the Justice Department, which seems finally, finally, You know, I think without a doubt, it is de rigueur to be angry at Merrick Garland, no matter who you are in America. If you’re not mad at Merrick Garland. You’re not paying attention, I guess. But the Justice Department does seem to be trying to do something about judge shopping.

Mark Joseph Stern: Yeah. You know, by the way, I happen to drive past Merrick Garland house the other day, and I saw a bunch of protesters outside, and I thought, okay, are they, you know, protesting the special counsel about the classified documents, about Trump, about the abortion fight? Well, what could it be? And it turns out they were protesting in favor of Julian Assange, the WikiLeaks guy. So, you know, everybody has their issue and these guys were really enthusiastic about theirs and letting Merrick Garland and his entire family know that they want Julian Assange to be freed anyway.

Dahlia Lithwick: But tell us that news, Marc. Tell us the good news. We met at the Justice Department.

Mark Joseph Stern: The good news is that the Justice Department is finally stepping up to deal with this problem that we have discussed on this show so many times, which is brazen judge shopping in the South, in red states, specifically in Texas. So Texas has exploited this kind of loophole in the law where it can file a case in a single division of a single district court where it knows that case will land before one particular judge. And that’s unusual for people who aren’t familiar with the system. Normally, when you file a case in a court, it gets randomly assigned to one of several judges who sit on that court. Here, Texas is gaming the system. They found this handful of divisions where they can just ensure that their case gets placed directly in front of a very conservative judge, in most cases, a Trump appointed judge.

Mark Joseph Stern: This has happened over and over again in Texas courts alone, 25 times since Joe Biden entered office, including at the very beginning of his presidency. And these judges have just issued a series of extraordinary and unprecedented nationwide injunctions blocking Biden administration policies left and right. And a lot of them, of course, have to do with immigration because Texas hates migrants. Texas wants to kick them out. The Biden administration is not especially good on migrant issues, by the way, like a lot of immigrant reform groups are harshly critical. But the administration is a cruel enough for Texas.

Mark Joseph Stern: So Texas’s latest lawsuit, this lawsuit is, I think, a very frivolous effort to block a Biden administration policy that is actually pretty harsh toward migrants. So it prevents individuals from Cuba, Haiti, Nicaragua and Venezuela from entering the United States and staying here while they are waiting to see whether they can remain legally. Instead, it forces most of them to go back to Mexico and wait there, which you might think that’s a good thing, like for conservatives. Texas once migrants to have to wait in Mexico.

Mark Joseph Stern: But the Biden administration allowed a very small number of individuals from these countries, if they can prove that they have a connection here, that they will be able to sustain themselves here, that they won’t become dependent on the government, that they’re not a safety risk, etc.. Those people can come in legally and stay here while they are awaiting a determination on their status. Right. So, honestly, kind of a modest reform to the system kicks most migrants out, but lets a small number. And Texas says this whole thing is illegal. It violates the law. It has to be blocked and it shops its lawsuit directly to the guy who started it all.

Mark Joseph Stern: Trump Judge Drew Tipton, a really radical, far right conservative Federalist Society darling who was the first to issue a nationwide injunction blocking a Biden immigration policy way back in January of 2021. And the Justice Department could have just come in and said, look, this lawsuit is frivolous. We’re going to fight it. You know, this doesn’t make any sense.

Mark Joseph Stern: But instead, for the first time in the lower courts, the Justice Department decided to play hardball with Texas over an immigration case and said, you know what? This is gamesmanship. This is blatant judge shopping. This is nothing more than an effort to obtain a favorable outcome by gaming the system, by exploiting loopholes in the in the structure of the judiciary to get a case directly before a single judge who is certain to rule a certain way. And, you know, the Justice Department backed this up with a whole lot of data showing that Texas has done this over and over and over again, that it’s always getting the same handful of far right judges who are always issuing the same set of decisions.

Mark Joseph Stern: And what I think is impressive about this is not just the fact that it has finally happened, that the Justice Department is like calling out Texas, but that it’s calling out Texas in front of one of the judges who is complicit in the whole scheme and really forcing that judge Drew Tipton to confront his complicity. What I would really say is his collusion in this scheme to exploit the judiciary to obstruct the executive branch. And this is for as far as Justice Department filings go. This is very strongly worded. This pulls no punches. And it really kind of tells it like it is in a way that folks like me and you and Steve Vladeck have been wanting to see for so very long.

Mark Joseph Stern: So Merrick Garland may do some stuff wrong. I’ll just, you know, leave the Julian Assange thing for another day.

Mark Joseph Stern: But here, his his agency has definitely gotten it right and really kind of put the heat on this judge who tipped him to either explain himself why he keeps entertaining these ridiculous suits that are jockeyed to go directly before him or maybe to just transfer it out to a real court that will handle it like real courts do, and end this ridiculous scheme where he and a few of his pals get to control the fate of the executive branch because Texas has exploited a loophole.

Dahlia Lithwick: Mark, just before we say goodbye for this week, is there anything you want to say that we haven’t said and written together about the leak and the report on the Doug’s league and the secondary report and the interviews with the justices about the doves leak and just the complete relentless chaos Muppet tree that is ensuing at one four street.

Mark Joseph Stern: So everybody’s already listened to your great interview with Jodi Kantor at this point. You know, I can’t add to that, really. I’ll just say a few small things. First of all, the PR aspect of this is truly mind boggling to me. So the court releases this this report and the statement, Right. And does not say explicitly whether the justices were interviewed. It makes it very ambiguous, I think intentionally so, and then waits a full day as everybody asks this question and then issues a new statement and said, oh, well, you know, the marshal had an iterative conversation with the justices. But based on that chat, decided that none of them or their spouses were suspicious and so did decided not to make them do what every single other person at the court who saw this draft had to do, which is sign a sworn affidavit saying you didn’t leak it under threat of perjury and possible prosecution if you lie. That is absurd. That is a clear double standard.

Mark Joseph Stern: And just from like, you know, again, the public relations perspective, if that’s that kind of like the bad thing, you have to tell everybody, you do it up front, you package it with all the other stuff. So it’s one news cycle. And instead, SCOTUS was like, Let’s make this two separate news cycles. Let’s let’s, let’s get people mad about this for two consecutive days instead of letting it blow over. That is hilarious, but also very dumb.

Mark Joseph Stern: Second thing I’ll say relatedly, is like clearly from the reporting that we have gotten, people at the court are pissed. People at the court for a very long time have bought into, by and large, this image of the justices as totally above politics as, you know, these majestic demigods who hand down their decisions divinely inspired from up on high and above politics and above corruption. But now those same people have been forced to sign these sworn affidavits under threat of perjury and watch their bosses skate, watch their bosses not have to do anything, even though, logically the justices are really the most likely people who would have either leaked or authorized a leak here.

Mark Joseph Stern: And I don’t think there’s going to be like a rebellion or a Spartacus uprising among the employees and clerks of the Supreme Court. But I do think there’s going to be a shift, a shift in attitude behind the scenes, whether that will affect the actual work product of the court, I don’t know. But clearly and for the first time, people are angry and they’re furious and they’re seeing the double standard they’re subjected to. They’re seeing that their bosses are nine politicians in robes, and it’s not going to help the already very poisonous atmosphere that has pervaded the court ever since the leak.

Dahlia Lithwick: I will say it seems to me the shift has already happened in so far as so many people cooperated with Jodi’s reporting, which really already suggests that something has changed. I do want to commend to our listeners, if you want to do a fun weekend activity and there isn’t a transcript of an interview with the justice to read, since there is no interview but rather iterative, I’m going to just keep saying iterative in scare quotes because it’s so funny conversations.

Dahlia Lithwick: But Francis Wilkinson has a great piece for Talking Points Memo. Unpacking the transcript of the Jenny Thomas appearance before the January six committee, which was released at the end of December. And let me tell you listeners, that is some quality, quality reading. So everybody head over to Talking Points memo and read. First read Francis Wilkinson’s hilarious, terrifying take on what happened in that interview and then go back and read the transcript. Because it is if you’re can’t get a justice on the record, get their spouse or boy. Mark Joseph Stern covers the courts and the law. The Supreme Court, rogue judge, shopping plaintiffs and everything else for us here at Slate. Mark, I wish you a very happy weekend and I thank you for spending time.

Mark Joseph Stern: Always a pleasure to spend time with you and our lovely Slate Plus listeners.

Dahlia Lithwick: And that is a wrap for this episode of Amicus. Thank you so much for listening in. And thank you always for your letters and your questions. You can always keep in touch at Amicus at Slate.com, or you can find us at Facebook dot com slash Amicus podcast. Today’s show was produced by Sara Burningham. Alicia montgomery is executive producer of podcasts at Slate, and Ben Richmond is senior director of Operations for podcast at Slate. We’ll be back with another episode of Amicus in two short weeks. Until then, take good care.